Crackpot Idea:
Trade-Marking the Flag

by Paul Niquette
Adapted from 101 Words I Don't Use
Copyright ©1996 by Paul Niquette. All rights reserved.
crackpot adj. Of or pertaining to ideas or proposals characterized by eccentricity, bizarre notions, uninformed and superficial.
What costs less than a buck to make and sells for a thousand?  That's easy: computer software, right?  Wrong.  Strictly speaking, you don't buy software.  You buy only a license to use software.  Why not do the same with the American Flag?

Certain restrictions apply.  For example, you are not supposed to copy software.  It says so right in the license agreement, which you can read through clear plastic.  "Read this carefully," it says.  The act of opening the package means you agree to abide by the terms of the license.  "Shrink-Wrap Licensing," we call it.  For the Flag License, you would agree not to desecrate the contents.  There may be other restrictions, but that's the main one.  The neat thing about this idea is, the Supreme Court will uphold it.  More on that point later.

Meanwhile, here's how it would work.  First, the United States would need to give itself a trademark on the American Flag ("trademark" may not be perfect terminology, since trade has little to do with the matter, but it is better than "copyright," which has a limited life).  A special case is called for: sui generis is the legal term.  That will doubtless require some legislating, but let us not digress.  Suffice it to say, trademarking the Stars and Stripes is a whole lot easier than amending the Constitution.  And less likely to result in political mischief.

Violators of the license agreement will be subject to both criminal penalties and civil sanctions.  According to public opinion polls, four out of five Americans want that.  "There ought to be a law against burning the Flag," we grumble.  So do elected officials of many stripes and stars who desire to keep their jobs.

The Supreme Court has ruled that states cannot outlaw desecration of the Flag.  Absolute primacy is thereby given to Freedom of Expression.  Almost.  Using a spray-can to write a slogan on the Washington Monument is impermissible, inasmuch as the act constitutes destruction of public property.  So let's make the Flag public property.

Each person who buys an American Flag would really be purchasing a license to use our National Symbol -- a lifetime license, which can be passed on or sold.  You would be agreeing to use the Flag only in certain ways: flying it in the daytime, for example.  People who already own an American Flag will be "grandfathered" somehow.  That's a nit -- so long as there are no retroactive costs involved.

Destruction of a worn-out Flag would follow a prescribed ceremonial procedure.  The owner of the license agrees to treat the Stars and Stripes with respect and to show diligence that others do the same.  Isn't that exactly what state laws would mandate if allowed by a Constitutional amendment?

Sure, there are enforcement problems.  People do copy software -- always in secret, though.  Burning the Flag is a public act, and who can doubt that someone will do it again?  But just try printing "Express Mail," a trademark already owned by the U.S. Government, on the side of your delivery truck.  Bringing violators to justice under the trademark laws would be no more difficult than giving them the slammer under state flag-laws.  Besides, that's not the issue.

There were 14 American Flags burned one year (my authority for saying that is an unverified Art Buchwald column).  We still need a law, however, not to reduce the number to zero -- or even to 13.  We need a law not so much to lock those people up as for making the rest of us feel better.  Isn't it nice to know that there's a Crackpot Idea for doing so without politicizing Old Glory, cobbling up the Bill of Rights, and passing a hodge-podge of state laws?


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